Karnataka High Court
Siddan Goud S/O Late Rachan Gouda vs Kareppa S/O Yenkappa Kalal And Anr on 9 February, 2022
Bench: J.M.Khazi
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 09TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MRS. JUSTICE J.M.KHAZI
MFA No.200991/2016 (MV)
BETWEEN:
SIDDAN GOUD S/O LATE RACHAN GOUDA
AGE:21 YEARS, OCC: STUDENT & AGRICULTURIST,
R/O: H.NO.1/20, BALICHAKRA,
TQ & DIST YADAGIR-585203.
...APPELLANT
(BY SRI.VEERANAGOUDA MALIPATIL, ADVOCATE)
AND:
1. KAREPPA S/O YENKAPPA KALAL
AGE: 33 YEARS, OCC: DRIVER,
R/O:BILHAR, TQ:SHAHAPUR,
DIST: YADGIRI-585203.
2. UNITED INDIA INSURANCE COMPANY LTD.,
JAWALI COMPLEX, SUPER MARKET,
KALABURAGI-585102,
THROUGH ITS DIVISIONAL MANAGER.
.....RESPONDENTS
(BY SRI.MANVENDRA REDDY, ADVOCATE FOR R2
NOTICE TO R1 DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF M.V.ACT, PRAYING TO ALLOW THE APPEAL,
THE JUDGMENT AND AWARD DATED 01.04.2016 IN MVC
NO.91/2015 PASSED BY THE MEMBER MACT-II, YADGIRI, MAY
KINDLY BE MODIFIED BY ENHANCING THE COMPENSATION AS
CLAIMED IN THE CLAIM PETITION.
2
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 01.02.2022, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This is claimant's appeal for enhancement of
compensation for the personal injury sustained by him
in a motor vehicle accident dated 18.12.2014.
2. The Tribunal has granted compensation in
a sum of Rs.10,28,328 with interest @ 6% p.a.
Though held that respondent Nos.1 and 2 are jointly
and severally liable to pay the compensation, the
Tribunal has given direction to respondent No.2 to
deposit the compensation amount by indemnifying
respondent No.1.
3. Notice to respondent No.1 is dispensed
with at the request of appellant.
4. Respondent No.2 has appeared through the
counsel.
5. For the sake of convenience, the parties
are referred to by their ranking before the Tribunal.
6. Facts leading to the filing of the claim
petition and consequent appeal are that on
08.12.2014 at 6.30 p.m. near Koilooru village, the
claimant was proceeding on motor cycle bearing
registration No.KA-33/J-4761 with another from
Yadgir towards Balichakra. He was riding the
motorcycle slowly and cautiously. However, jeep
bearing registration No.AP-02/C-2052 driven by its
driver in a rash or negligent manner came from
opposite side in a high speed and dashed against the
motorcycle. In the said accident, the claimant
sustained several injuries including fractures. A
criminal case in Crime No.255/2014 was registered
against the driver of the jeep and ultimately charge
sheet was filed against him.
7. The claimant has contended that due to the
accidental injuries, he has sustained permanent partial
disability resulting in loss of income.
8. In his written statement, respondent No.1
has apart from denying the allegations made by the
petitioner has contended that at the time of accident,
the driver of the jeep was having a valid and effective
driving license and the vehicle was covered by a valid
policy issued by respondent No.2 and as such it was
liable to pay the compensation, if any.
9. Before the tribunal, though respondent
No.2 has appeared through counsel it has not filed
written statement.
10. The Tribunal has framed the necessary
issues.
11. Claimant has examined himself as PW.1
and doctor as PW.2. He has relied upon Exs.P1 to
P88. On behalf of respondents Exs.R1 to R3 are
marked.
12. The Tribunal has partly allowed the claim
petition granting compensation in a sum of
Rs.10,28,328/- as detailed below;
Particulars Amount
Pain and suffering Rs.35,000/-
Loss of amenities Rs.25,000/-
Medical expenses Rs.7,43,928/-
Attendant charges Rs.05,000/-
Loss of income during Rs.05,000/-
course of treatment
Loss of future income Rs.1,94,000/-
Removal of nail Rs.20,000/-
Total Rs.10,28,328/-
13. The claimant is seeking enhancement
contending that the notional income taken at
Rs.6,000/- is on the lower side and it should have
been at least Rs.7,500/- as per the minimum wages.
He has also contended that having regard to the
nature of the injuries sustained by the claimant, the
disability taken at 15% on the whole body is on the
lower side and at least it should have been at 20%.
The compensation granted under the head pain and
suffering and loss of amenities of life requires
enhancement. So also the attendant charges and
compensation during the laid up period are to be
increased.
14. On the other hand learned counsel
representing respondent No.2-Insurance Company,
argued that based on the evidence placed on record,
the compensation granted by the Tribunal is just and
sufficient and pray for dismissal of the appeal.
15. It is pertinent to note that at the time of
accident, the claimant was student. He was aged 20
years. Though claimant has pleaded that in addition
to being a student, he was doing agricultural work and
earning Rs.15,000/- per month, he has not produced
any evidence to prove the said fact. Therefore,
compensation is required to be given on the basis of
notional income. The Tribunal has taken his notional
income as Rs.6,000/- per month, where as according
to the chart prepared by Karnataka State Legal
Services Authority, which is based on minimum
wages, during 2014 the notional income should have
been taken as Rs.7,500/-. Therefore, the
compensation is required to be calculated based on
notional income at Rs.7,500/-.
16. Since the claimant has suffered permanent
partial disability, as per the decision of Erudhaya
Priya Vs. State Express Transport Corporation
Ltd. reported in 2020 SCC Online SC 601 and
Pappu Deo Yadav Vs Naresh Kumar reported in
AIR 2020 SC 4424, (Pappu Deo's) even in case of
partial permanent disability, loss of future prospects
are to be added. As per Pranay Seth's case which is
reiterated in Magma General Insurance Company
Limited Vs. Nanu Ram Alias Chuhru Ram And
Others, reported in (2018) 18 SCC 130, since the
claimant is a student and loss of income is based on
the notional income, he should be treated as an
employee of a private employment or self employment
and since his age was less than 40, 40% of notional
income is to be added towards loss of future
prospects. 40% of Rs.7,500/- comes to Rs.3,000/-.
Therefore, the notional income of claimant is to be
taken at Rs.10,500/- for calculating the loss of future
earnings and loss of future prospects.
17. The claimant was aged 20 years at the
time of accident, the appropriate multiplier is 18.
Since the disability suffered by claimant is stated to be
50% of lower limb, 1/3rd of it comes to 16.6 and
therefore 15% of the whole body as taken by the
Tribunal is on the lower side. Since the claimant has
suffered four fractures out of which two fractures are
major, I am of the considered opinion that the
disability of the whole body is to be taken at 20% and
not 15% or 16.6%. Taking the notional income as
Rs.10,500/, multiplier 18 and permanent partial
disability at 20% of the whole body, the compensation
under the head loss of future earnings and future
prospects comes to Rs.10,500 x 12 x 18 x 20% =
4,53,600/- instead of Rs.1,94,400/- granted by the
Tribunal.
18. The Tribunal has granted Rs.35,000/-
under the head pain and suffering. It is pertinent to
note that the claimant has sustained fracture of right
clavicle, fracture of sub-trochanteric of right femur,
fracture of right calcenium bone, 5th metatorsal bone.
Having regard to the nature of the fractures suffered
by the claimant, I am of the opinion that granting
compensation in a sum of Rs.80,000/- under the head
pain and suffering would be appropriate and just.
Therefore, a sum of Rs.80,000/- is granted under the
head pain and suffering instead of Rs.35,000/-
granted by the Tribunal. Similarly, taking into
consideration the fact that these fractures have
resulted in permanent partial disability, Rs.25,000/-
granted under the head loss of amenities is on the
lower side and the same is substituted by
Rs.1,00,000/- which would be just.
19. The Tribunal has granted a sum of
Rs.7,43,928/- under the head medical expenses which
is based on the medical bills produced by the claimant
and therefore it is appropriate.
20. The Tribunal has granted Rs.5,000/-
towards attendant charges on the ground that
claimant was in-patient for 25 days. However having
regard tot he fact that he has suffered four fractures
and was in-patient for 25 days and also has
undergone number of surgeries, it should be
appropriate, if attendant charges are granted for a
period of two months @ Rs.5,000/- per month, which
comes to Rs.10,000/-. The Tribunal has granted
Rs.5,000/- towards loss of income during course of
treatment. Since the claimant has suffered four
fractures, it would be reasonable to expect that he
was not in a position to move around especially with
his fracture of calcanium bone and metatorsal bone. It
would be appropriate if three months income is
granted towards loss of earnings during the laid up
period, which comes to Rs.22,500/-.
21. The Tribunal has granted compensation in
a sum of Rs.20,000/- towards removal of implants. I
find no reason to interfere with the same.
22. Thus, in all the claimant is entitled for the
total compensation of Rs.14,03,028/- and the same is
rounded off to Rs.14,00,300/- instead of
Rs.10,28,328/- granted by the Tribunal as detailed
below;
Heads By Tribunal By this Court
Pain and suffering Rs.35,000/- Rs.80,000/-
Loss of amenities Rs.25,000/- Rs.1,00,000/-
Medical expenses Rs.7,43,928/- Rs.7,43,928/-
Attendant charges Rs.05,000/- Rs.10,000/-
Loss of income during Rs.05,000/- Rs.22,500/-
course of treatment
Loss of future income Rs.1,94,000/- Rs.4,53,600/-
Removal of nail Rs.20,000/- Rs.20,000/-
Total Rs.10,28,328/- Rs. 14,30,028/-
Rounded off to Rs.14,30,000/-
23. Of course, the claimant is entitled for
interest @ 6% p.a. Respondent No.2 being the
insurer of the offending vehicle is liable to pay the
same.
24. Accordingly, I proceed to pass the
following;
ORDER
(a) The appeal is allowed in part.
(b) Appellant/claimant is entitled for the
compensation in as sum of Rs.14,30,000/- as
against Rs.10,28,328/- granted by the
Tribunal, with interest @ 6% p.a. from the
date of petition till realization (minus the
amount already paid).
(c) The respondent No.2-Insurance Company
shall deposit the compensation amount within
a period of six weeks from this order.
The registry shall transmit the trial court records
along with copy of this judgment forthwith to the
concerned Court.
Sd/-
JUDGE
msr
